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Summer 2007

The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family mediators interested in sharing knowledge and setting guidelines for mediation. MCFM is the oldest professional organization in Massachusetts devoted exclusively to family mediation.

Family Mediation Quarterly


MASSACHUSETTS COUNCIL ON FAMILY MEDIATION 23 Parker Road Needham Heights, MA 02494-2001

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From The President: Lynda J. Robbins

The Growth of Mediation in Massachusetts MCFM has recently reached the milestone of our 200th member! I remember our first conference in April 1983 at Pine Manor College and the excitement it generated about the nascent field of family mediation. At that time, mediation was most often being confused with meditation. But, I and many others felt the excitement in the air and knew that mediation was a process that our clients needed. As MCFM has grown, we have tried to accomplish two missions — supporting our members and promoting the use of mediation and its professionalism. We have accomplished these missions through our Institute, our professional development meetings, our standards and certification, our website and referral directory, our renowned Family Mediation Quarterly, our networking and work with the Courts, local trainers and the public. And we continue to strive to accomplish our missions. Our members serve on the Board as Directors and Officers, they serve on committees — in the Council and in the greater mediation/ADR world, they present at programs, they network and, most important, they mediate. Each time clients sit in one of our offices, we have the opportunity to help transform their lives. Instead of encouraging them to fight, we encourage them to solve problems. It’s magical. And it’s very hard work! Being a member of MCFM and all it represents tells fellow mediators, judges, lawyers and the public that you are a professional and you adhere to the highest professional standards. I am proud to be associated with all of you and proud to be involved in an organization of so many dedicated people. I congratulate each and every one of our 206 members!

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Family Mediation Quarterly Les Wallerstein, Editor 1620 Massachusetts Avenue Lexington, MA 02420 (781) 862-1099 The FMQ is dedicated to family mediators working with traditional and non-traditional families. All family mediators share common interests and concerns. The FMQ will provide a forum to explore that common ground. The FMQ intends to be a journal of practical use to family mediators. As mediation is designed to resolve conflicts, the FMQ will not shy away from controversy. The FMQ welcomes the broadest spectrum of diverse opinions that affect the practice of family mediation. The contents of the FMQ are published at the discretion of the editor, in consultation with the MCFM Board of Directors. The FMQ does not necessarily express the views of the MCFM unless specifically stated. The FMQ is mailed to all MCFM members. Copies are provided to all Probate & Family Court Judges, all local Dispute Resolution Coordinators, all Family Service Officers and all law school libraries in Massachusetts. An archive of all previous editions of the FMQ are available online in PDF at <>, accompanied by a cumulative index of articles to facilitate data retrieval. MCFM members may submit notices of mediation-related events for free publication. Complimentary publication of notices from mediation-related organizations is available on a reciprocal basis. Commercial advertising is also available. Please submit all contributions for the FMQ to the editor, either by email or computer disk. Submissions may be edited for clarity and length, and must scrupulously safeguard client confidentiality. The following deadlines for all submissions will be observed: Summer: July 15th Fall: October 15th Winter: January 15th Spring: April 15th All MCFM members and friends of family mediation are encouraged to contribute to the FMQ. Every mediator has stories to tell and skills to teach. Please share yours.

Summer 2007 â&#x20AC;˘ Vol. 6 No. 3


THE MORAL OF THE STORY: WHO WILL GRANT THE “REAL” DIVORCE? By Steve Nisenbaum & Madelaine Claire Weiss


“PROBATE & FAMILY” COURT OR... “FAMILY & PROBATE” COURT? A Statistical Overview by Ilene Mitchell


JOINING TO SEPARATE: A Very Brief History of Joint Petitions By John A. Fiske


DETERMINING THE COST BASIS OF A CLIENT’S HOME: The Devil is in the Details By Dennis M. O’Leary




THE IMPORTANCE OF INTAKE IN MEDIATION By Israela Brill-Cass & Nicole DiPentima

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What’s News? MCFM News Email: Blue Moon & Einstein Announcements Join Us Directorate Editor’s Notice MCFM © 2007 All Rights Reserved

Summer 2007 • Vol. 6 No. 3


THE MORAL OF THE STORY: WHO WILL GRANT THE “REAL” DIVORCE? By Steve Nisenbaum & Madelaine Claire Weiss “I am Oz, the Great and Terrible. Who are you, and why do you seek me? It was not such an awful voice as she had expected to come from the big Head; so she took courage and answered: “I am Dorothy, the Small and Meek. I have come to you for help.” . . . . “Why should I do this for you?” asked Oz. “Because you are strong and I am weak; because you are a Great Wizard and I am only a helpless little girl.” L. Frank Baum, The Wizard of Oz: An American Fairy Tale (1900)

What is the “Real Divorce”? Fortythree percent of first marriages, and an even higher proportion of second marriages, end in divorce within 15 years, according to the 2000 U.S. Census. The courts are busy; too busy to wander from the legal, financial and child welfare responsibilities with which they consider themselves to be charged. But divorce is more than the outcome of a litigation process, whether contested or “no fault,” and whether the litigant is pro se or ably defended by an eloquent gladiator lawyer. The real divorce is in the hearts and minds of the divorcing parties and their children. And it is as much an illusion as the Wizard of Oz to believe that the real divorce — the one that includes the full

measure of justice, justice each party shall pursue — will be always, in all ways, granted in that courtroom. “Divorce” is taken, generally, to have an obvious culturally sanctioned meaning shared by everyone using the term. This is misleading. Not a monolithic descriptor of a unitary homogenous transaction, the phenomenon of divorce is actually a constellation of overlapping or superimposed processes that we summarily refer to as “The Divorce.” It is more apt and accurate to think of “The Divorce” as a composite event comprised of related but distinguishable transactions. To name only a few, there is the contractual legal divorce (by the State), the financial divorce, the property divorce, the parental divorce, perhaps a sacred divorce, if one subscribes to a particular religion’s traditions — and the moral divorce. The concrete and tangible things and arrangements that comprise the content of ordinary day-to-day living can be the fodder for the legal rituals. But there are intangibles too. In this paper, we will explore an intangible: the quest for the “Moral Divorce”— the least understood and explicitly articulated of the constellation of simultaneous divorces; as well as the most difficult, if not most important, element of the “Real Divorce” to achieve. We propose to examine the definition, true significance, and the recommended exclusive avenue for its resolution.

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Shattered Glass: The Myth of Marriage The mythology of marriage is that a man and a woman (so far in most states) exchange vows and enter Holy Matrimony by amalgamating their respective particular interests. Separate needs are discarded forever (or at least “Til’ Death Do Us Part”), subordinating individuality in favor of a newly fused shared identity-incommon as a married couple of husband and wife. Of course, most mythologies are realized only imperfectly, and serve mainly as models to remind us of the presumptive noble aspirational ideals inherent in them. Still the models exert considerable force in the guidance of instrumental and expressive behavior and sentiments. Even in the Hall of Fame marriages that last, joyfully or not, the specter of old age, retirement level income, and eventual illness and death inevitably sensitize all but the totally-in-denial to the need to plan for awkward possibilities, including the survival of a dear spouse’s death.

harsh reality indeed, because it is the betrayal of a highly valued ideal and promise that was made. A promise made and a promise broken. Fair is fair. This is not. And people care deeply, very deeply, about these kinds of things. Consider “The Ultimatum Game,” an economic game used by researchers to study human motivation and behavior (Kindness in a Cruel World, Nigel Barber, Prometheus Books, 2004, p.204). The terms of this game are that an amount of money, for example $10, is to be split between a “proposer” and a “responder.” The offer made by the proposer cannot be changed during the game. If the responder does not accept the offer made by the proposer, neither party gets any money. One might imagine that the responder would accept any amount offered. One dollar is better than no dollar? But this is not what happens. “In fact, proposers usually offer half of the money. Moreover, offers less than $3 are often rejected” (Ibid). Nigel Barber’s claim that fairness trumps

The real divorce is in the hearts and minds of the divorcing parties and their children.

When the prospect of dissolving the marriage by divorce rears its head, a sobering reassessment is initiated much sooner. Frequently, this dawning unfolds not in sync but through one spouse asserting what is now virtually a unilateral prerogative to end a marriage, while the other may cling valiantly to the bliss of ignorant denial, but only for a time. Ultimately, the expectation of perpetual mutual reciprocity and devotion is shattered, with more individualistic expectation all too ready to jump into its place. Though understandable from a rational standpoint, for many, this shift is a

self-interest in humans is well supported in the literature. In addition to his book’s citation of H. Gintis et al., “Explaining Altruistic Behavior in Humans,” Evolution and Human Behavior 24 (2003): 153-72; the reader is referred to B. Van den Bergh et al., “Are prosocials unique in their egalitarianism? The pursuit of equality in outcomes among individualists,” Personality and Social Psychology Bulletin, 2006 Sep: 32(9): 1219-31.

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Fairness matters. A lot. Remember the “Incredible Hulk,” the cartoon character who grows big, green and scary when he gets mad. Otherwise ‘normal and nice’ people can transform under conditions of perceived unfairness. Especially men, who, when observing people playing an economic game unfairly, showed more activation than women in the areas of the brain correlated

The Court of law is a forum for theatrical depiction of the divorce melodrama with desire for revenge (Singer et al., “Empathic neural responses are modulated by the perceived fairness of others, Nature, 2006 Jan 26; 439(7075):466-9). Tell that to the fourteen-year-old who asked his mother how it was possible that she had gone from loving his father with all her heart one day to hating him with all her might the next—that is, the day she learned that her marriage had been sacrificed to the secretary in his office. Women can turn green and scary too. As McCloskey and Wheeliss (1966) pointed out long ago, once people accept that the marriage is ending, “Attraction breaks down and often repulsion emerges.” Repulsion or worse. And the divorce wars begin: •

Who will stay in the house? Can one demand the other vacate?

How/By whom will children be cared for?

How will children be supported? Any support for spouse; if so, how much?

Who is responsible for debts? Can assets of the marriage be preserved?

Who is responsible for attorney fees? Anita Wyzanski Robboy (2002)

Other issues to fight about from Garrity and Barris (1994): •

Trust in parenting skills (adequacy of supervision, safety, diet and nutrition, medical care, sleep, discipline methods, house rules, allowance, religious observance, moral teaching and example)

Choosing, paying for, attending kids’ sports, activities, special events, recitals, games, school progress, parent-teacher conferences, homework

Communication about and visit time share; changes of visit arrangements, drop-off/pick-up; transition time behavior (crying, tantrums, upset); vacations and holidays; travel away

Parent-child communication arrangements (e.g., cell phones, telephone calls, email, letters) and time; accessibility

Loyalty binds, disparaging remarks

Pets, toys, possessions, shopping and spending

Invitations from child’s friends

Family Mediation Quarterly


Extended family involvements, family functions

Ken Cloke (2005) has nicely catalogued ten reasons why conflict may persist even after divorce: •

First, conflict defines us and gives our lives meaning

Second, conflict gives us energy

Third, conflict ennobles our misery

Fourth, conflict safeguards our personal space, stakes out our turf

Fifth, conflict creates intimacy, even if negative

Sixth, conflict camouflages our weaknesses and diverts attention

Seventh, conflict powerfully communicates what we honestly feel

Eighth, conflict gets results

Ninth, conflict makes us feel righteous

Tenth, conflict prompts change

Sometimes, and maybe, to all of the above, but let us go with number nine. Conflict makes us feel righteous. I am right and s/he is wrong. But not really until ‘my lawyer’ gets ‘the judge’ to say so. One woman talked about how, for all the years leading up to her actual court date, she would rehearse her case to the judge. It did not seem to matter that she would not have an opportunity to say any of what was on her mind to the judge; the imaginary

conversation was a regular part of her day. Another woman was on medication for what her doctor called rumination, thoughts swirling in her head on exactly the same topic. “Why am I doing this?” she asked about her non-stop need to tell her side of the story to anyone who would listen. The lawyer, the judge, the therapists, the teachers, the children themselves, if not the whole entire world, including the bus driver and the grocery store clerk, need to know whose fault this really is. A marriage failed. Something bad has happened and someone is to blame. There were two of us in this marriage, so if it is not him/her, well then who? Make it not be me. And why is that? In The Moral Animal (1994), Robert Wright quotes Darwin to say: “as the reasoning powers and foresight…became improved, each man would soon learn from experience that if he aided his fellow-men, he would commonly receive aid in return” (p.189). Wright, calling this reciprocal altruism, goes on to say himself that reciprocal altruism: “puts its accent on niceness, integrity, fairness. These are the things that make us seem like worthy reciprocal altruists. They make people want to strike up relationships with us…(and to aid us in ways that can contribute to our wellbeing as Darwin has said)…during human evolution a small slice of material well-being has at times been the difference between life and death, Continued on next page

Summer 2007 • Vol. 6 No. 3


between attracting a mate and not attracting one, between three surviving offspring and two” (p.273, 277). If, as Wright claims, we have been for reasons of our very survival as a species “designed to think of ourselves as good and our behavior as defensible, even when these propositions are objectively dubious” (p.338), is it really any wonder that the issue of one’s own goodness would demand redress during divorce? Can we think of a failure any greater or an insult any deeper to one’s preferred sense of self than the failure of a marriage? We think perhaps not. And, moreover, that herein lies the source of the bleeding that will not stop, on a variety of fronts, long after the ink on the divorce decree is dry. The bleeding that will not stop until and unless one is granted one’s “Moral Divorce.” What is the “Moral Divorce”? By the “Moral Divorce,” we refer to the deeply felt and life-shaping meaning the individual assigns to the sum total of all the events that collectively comprise “The Divorce.” We posit that, to the individuals involved, this is by far the most important among the various “kinds” of divorce on the divorce typology, because of the critical impact it has on all aspects of the divorce. Let us illustrate the point experientially. The authors have co-led a training mandated by the State of Massachusetts for all divorcing parents of minor children. Material is presented and discussed on some of the better researched Do’s and Don’ts for divorcing parents; for example, don’t argue with your spouse about adult issues in front of the children.

After the break during the second session of a two-part training, we asked for a show of hands to indicate how many parents were already familiar with the divorcing parents guidelines before having ever entered the training. On one occasion, roughly half the room raised their hands. On another, in a different geographical location, all participants raised their hands. The followup question was the same, “Of those of you who raised your hands, how many feel that you have performed flawlessly on the Do’s and Don’ts you already knew.” On both occasions, no one raised his/her hand and everyone broke out laughing. Next question: “What makes it so hard?” For those who do, why do they continually seek unforthcoming apology, admission of wrongdoing or forgiveness from their exspouses? How is it possible that this wellmeaning parent had yet another outburst to the child about his/her other parent, after swearing never to do that again? Why do they care as much as they do whether their friends have taken a side, their side to be exact. And, why do they bury their lawyer with calls about the name of the ex’s latest lover and tales, if not newspaper clippings, about how truly rotten s/he is; when they are told again and again that the courts are not as interested as they are themselves in that sort of detail. Because, though the courts will grant their legal and financial divorce, they have no idea where to turn for the “Moral Divorce” that they and their children need for them all to come to rest. And Why “Moral Divorce”? Following Plato’s triune conception of the Soul set forth in The Republic’s famous charioteer

Family Mediation Quarterly

6 and unruly white The “Moral Divorce” is the coming to horses, Sigmund Freud regurgitated terms with, and acceptance of, the reality the metaphor with the agency of of a New Self who is no longer “spouse” bodily appetites but newly re-individuated “divorcee.” (unruly horses) as an Id, the guardian of moral prohibitions Divorce requires then its own mythological (whip) as the Superego, and the mediating interpretation because it impinges so function (charioteer) as the integrative Ego. powerfully on the animating motives of Freudian motifs are now ubiquitous across human needs for attachment, procreation, all domains of cultural forms critique, and protection, the so-called 4 F’s (feeding, despite the best efforts of Post-Modern fighting, fleeing and sexual relations). In Deconstructionists are so interwoven with the process of dissolving the marriage, the Modern consciousness that they cannot be raw narcissistic wounds fester, oozing puss, the salve of meaning is required — readily dissected and dismissed. and the meaning better be that the one But beyond the elegance of Freud’s style of seeking the meaning has been good. writing (for which he was a contender for the Nobel Prize in Literature, not Science) A la Wittgenstein, language is a and elaborate theoretical framework, the precondition for thought. A linguistic truly compelling persuasive power of culture is the medium in which the psychodynamic explanation is that it language speakers engage in meaningcorresponds to the underlying neurological making and communicate across multiple structures and pervasive natural cultural subjectivities to construct a shared The constructed categories of Western thought that Plato consensual reality. had grasped and laid out. Indeed, that is interpretive formulation is the accumulated what imbues it with the mystique of sense of Self guiding our experience of adequacy of “explanation” for otherwise uniqueness and coherence, and employed to retrieve, order and use the repository of merely descriptive heurisms. personal memories in the service of The upshot is that being and meaning are existential meaning and worth. inextricable, as Descartes reasoned in his Cogito. The human condition is a yearning The incredible urgency of this human quest for conclusive moral meaning, from which for meaning in life is poignantly and the species fundamental cultural inventions inextricably bound up in the crisis of (tools for instrumental action, cave divorce. Divorce presents the unavoidable drawings and jewelry for self-aware occasion for reconfiguring personal expression and ornamentation, ritual burial assumptions, priorities and motives into a rites of the dead for eternal hopeful suitable new meaning structure for the future. Because the grammar and syntax of salvation, and so forth) emerged. Continued on next page

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7 language is narrative, this takes the form of a story. As social animals, we seek recognition and confirmation of others for a story that best portrays our personal explanation for what is transpiring and why. The validation of others for our version of the narrative truth (which is one among the possible portrayals of the historical truth) is important because that is what we bequeath our loved ones and what gives us the self-esteem and courage to go on living. The Moral of the Story for the Divorcing Spouses It turns out that nobody else can grant the “Moral Divorce” because it exists only in the eye of the beholder. Seeking confirmation from others is seeking Justice, of course, which is another way of convincing ourselves that we have succeeded after all. As important and urgent as that need may feel, in a sense it is unquenchable because, ultimately, it cannot be granted in any sustainable way by anyone but the seeker living with and within the story being told to oneself. The Court of law is a forum for theatrical depiction of the divorce melodrama, because as Shakespeare reminds us, we are extremely dramaturgical creatures, and all the world is our stage. But what happens there is merely theater, not reality. The moral of the story is this: The “Moral Divorce” is the coming to terms with, and acceptance of, the reality of a New Self who is no longer “spouse” but newly reindividuated “divorcee.” It is the process through which this New Self, however imperfect, engages in the emotional and behavioral work required to find and take

his/her rightful place as a respected — and self-respected — member of the community in which s/he lives. This is a vitally important resolution to reach, because all of the frantic activity that we think of as “The Divorce” and its aftermath is but a footnote, really. The vindication that one is still worthy after failing at a major life task depends less on the judgments of family, friends, children, our divorce lawyer, the Judge — the Wizards of Oz — than it depends on the successful reconciliation with oneself. Much has been written about forgiveness and the power of apology in divorce, the need to keep children from being “caught in the middle,” parental alienation syndrome, and so many other facets of the process. But much of this is misguided because it assumes that what must be resolved is something concrete and tangible, and because it assumes that it can be accomplished by manipulating externalities. Indeed, the “Real Divorce” is complete only after the “Moral Divorce” is achieved, and that is something one grants to oneself through the mastery of one’s own mind over these matters rather than through something outside of oneself. In this light, the sources of ongoing conflict that Ken Cloke describes ably above are no more and no less than the residual strivings for a “Moral Divorce” not yet granted by oneself to oneself. The Moral of the Story for the Divorce Lawyer and Other Divorce Professionals The divorce lawyer who understands the need for a “Moral Divorce” is ahead of the

Family Mediation Quarterly

8 game for himself and his client in several ways. First, that lawyer is relieved of the burdensome anxiety of striving for the unattainable. The lawyer can explain that the courts will grant the legal and financial divorce. S/he may say to the client: You may or may not feel this way now, but there exists the possibility that you will also want what we call a “Moral Divorce,” which will involve repairing the injury to your sense of yourself as a good person that divorce so often requires. These are some of the ways for you to know that a “Moral Divorce” may be something you are seeking; for example, if you find yourself splitting the children from the other parent; frequently engaged in indiscriminant, ruminative talking about the ‘badness’ of the other party… The courts cannot do this work for you. So what would be your plan for how you would resolve your “Moral Divorce” should you find yourself seeking one? Referral resources can be made available as indicated, at which point the lawyer can then realistically devote him/herself to the legal tasks at hand that s/he has been well trained to provide. Second, the lawyer gains a form of professional and personal satisfaction not realizable by filing motions, deposing witnesses, or parrying scintillating objections. What can be more comforting to a client than a heartfelt and simple statement from one’s attorney that finally

one’s plight is fully understood? The Mental Health professionals know better than many lawyers the exquisiteness of simply bearing the client’s pain. The old adage is topsy-turvied: “Don’t just do something, Stand there!” Third, vastly enhanced is the lawyer’s likelihood of focusing properly on the best interests of the client as a member of a family, including the children. Likewise, the client becomes better able to care for oneself and one’s children. To the extent that we may think of a wizard as someone wise and skilled, both lawyer and client become wizards at what they are meant to do and do best. The “Real Divorce” completes with the “Moral Divorce” that one grants to oneself.

Steven Nisenbaum, Ph.D., J.D., is a Psychologist and a Mediator with CO Solutions, LLP. A member of the BBA, Steve is Past President, of the Massachusetts Psychological Association, and is on the staff of Massachusetts General Hospital, Harvard Medical School. Madelaine Claire Weiss, M.S.W., M.B.A., a Social Worker trained in mediation by the National Center for Dispute Settlement, is an administrator at Harvard Medical School. In her practice she specializes in mindfulness, as well as family matters.

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“PROBATE & FAMILY” COURT OR... “FAMILY & PROBATE” COURT? A Statistical Overview By Ilene Mitchell Over the last two decades the caseload of the Probate and Family Court has changed dramatically. To analyze this change we have separated the cases into two major categories: Probate and Family. For this analysis “Probate” cases are defined as: Estate and Administration cases, Guardianship and Conservatorship cases, Equity, Change of Name, and related matters such as accounts. “Family” cases include all Divorce, Paternity, Child Welfare, Adoption, c. 209A Restraining Orders and other related matters such as Contempt and Modification cases. Motions are not included. Below are three caseload charts. The first and second charts illustrate the changes that have taken place in the caseload of the Probate and Family Court since 1980. Changes in jurisdiction have dramatically

Changes in Cases Filed Number Probate, Number Domestic

altered both the volume of cases in the Probate and Family Court and the ratio of cases between “Probate” and “Family.” The third chart shows the breakdown of “Probate” and “Family” cases by Division in the Probate and Family Court for fiscal year 2006. [See page 10.] If you would like to see the general statistics for the caseload of the Probate and Family Court or other court departments for the last six fiscal years, see es/courts/stats/index.html. Ilene Mitchell, is Case Manager at the Administrative Office of the Probate and Family Court, Two Center Plaza, Boston, MA 02108. Ilene can be reached at 617-788-6615, or at

Changes in Cases Filed Percentage Probate,Percentage Domestic

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JOINING TO SEPARATE: A Very Brief History of Joint Petitions By John A. Fiske Once upon a time, Dearly Beloved, back before Guidelines and Parent Training and Rules of Dispute Resolution, the only way to get divorced was to sue the other guy. Even people who reached complete agreements had to be combatants, one against the other, plaintiff versus defendant. In the late 1970's and early 1980's, mediators would congratulate couples who signed mutually acceptable Separation Agreements with a sense of pride and accomplishment and then say, "You've done a great job reaching agreement. Now one of you has to sue the other. Why do you look like you want to vomit?"

professionals for removing further taints of blame and fault and one spouse against the other spouse. The MBA introduced a bill allowing for a joint petition. The MBA had been working to reduce the waiting period anyway, and when Senator Mary Fonseca from New Bedford retired there was no longer a member of the legislature obsessed that "Massachusetts is become a divorce mill," her rallying cry for years believe it or not. I think it took two years for the legislature to create Section 1A allowing a joint petition and, slowly but surely, to reduce the waiting period. The process of evolution is slow as you know, and vestiges of Earlier Times still remain in the requirement that parties to a joint Once upon a time...the only petition have to wait 90 days plus 30 to way to get divorced was to become absolute and parties to a fault or versus divorce have to wait 90 days sue the other guy. period. Then when you told them that if the ground for divorce was for fault, such as cruel and abusive treatment or excessive use of opium, it took a year for the judgment of divorce nisi to become absolute but if the ground for divorce was for irretrievable breakdown without fault, it took two years for the judgment of divorce nisi to become absolute, you just wanted the meeting to end as soon as possible. The Mass Council on Family Mediation talked to the Mass Bar Association Family Law Section and there was a lot of support from the divorce bar and mental health

Some of us relativists are nervous about anything that's absolute, anyway. But at least our cooperative divorcing couples can feel they are still working together when they go to court as petitioners and not as plaintiffs and defendants. John A. Fiske is a founding member, past president and director emeritus of MCFM. He is also a partner at Healy, Fiske & Richmond, a Cambridge firm concentrating in family law and mediation. John can be contacted at (617) 354-7133, or by email at <>.

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DETERMINING THE COST BASIS OF A CLIENT’S HOME: The Devil is in the Details By Dennis M. O’Leary Determining the cost basis for a client’s home is an important step in quantifying marital assets during the divorce process. This calculation, however, can be complex depending on the circumstances, and mistakes may result in misstating the actual cost basis resulting in unforeseen future tax consequences. To better understand this calculation, first we will take a look at the steps involved in finding the cost basis of a client’s home; then we will do a brief review of the tax laws with regards to capital gains and losses on a residential sale; and finally we will walk through an example that illustrates some of the complexities involved in this process.

1. Determining the original price of a home depends on how it was acquired. • The basis of a home purchased includes the sale price of the home plus closing costs (attorney’s fees, transfer taxes, title insurance and recording fees). • The basis of a home that was built includes the cost of the land plus the material and labor costs. Labor contributed by the owner is excluded from this calculation. • The basis of a home acquired through a gift is equal to the original cost basis of the donor, plus any gift tax paid by the donor. The gift tax is calculated on the net increase in the home’s value. • The basis of a home acquired from a decedent is the fair market value of the home on the date of the decedent’s death or an alternative valuation date.

2. Establish adjustments to the cost basis by adding the value of improvements to the home with a useful life of more than one year. For example: • The addition of a room, patio, deck or garage. • The installation of landscaping, a sprinkler system, and a fence.

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13 • Special assessments for local improvement that increases the home’s value, such as sewer connections and sidewalks. Note that repairs such as interior and exterior repainting, fixing gutters or floors, and repairing leaks or plastering do not increase the cost basis unless they are done to prepare or improve the home for sale. Appliances are excluded unless attached to the house. Thus, a built-in oven or range would increase the cost basis, but a TV or washer and dryer would not qualify. 3. Reduce the cost basis (if any) of the following occurred during ownership: • Depreciation was taken on home post-May 6, 1997; for example if a home office deduction was taken or the home was rented out. • Any capital gain(s) were rolled over when selling the home pre-May 7, 1997. • Insurance reimbursements were provided for casualty losses and deductible casualty losses were not covered by insurance. Calculating the Potential Capital Gain or Loss on a Residential Sale Current tax law excludes gains on the first $500,000, but there are a number of conditions that must be considered before using this number for the exclusion: • Ownership - two out of the last five years. • Use - lived in home two of the last five years. • Capital gain exclusion - not used in last two years by either spouse; exclude up to $500,000 of the gain. Also, if one spouse takes ownership of the home, a person filing as single or head of household qualifies for a reduced exclusion of $250,000.

Illustrating the Complexities in Calculating the Cost Basis of a Client’s Home Now let’s use an example to illustrate the complexities involved in determining the cost basis of the client’s home and the actual gain or loss. Imagine that Jane is your client. In 1975, Bill (single) bought his first home for $100,000. Ten years later he sold the house for $275,000. At that time, he was getting married and wanted to avoid paying taxes so he rolled the gain into a new home costing $300,000. His wife died in 1995 at which time the home was valued

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14 at $500,000. Bill remarried (Jane) in 1997 and has have lived in the home since. In 2007, Bill and Jane filed for divorce. As part of the settlement, Jane will take sole ownership of the marital home. The net selling price of the home is appraised at $1,000,000. Bill has made a number of improvements and has documentation supporting the swimming pool and landscaping ($100,000), new kitchen ($70,000), and painting the house’s exterior and interior ($30,000). Bill used part of the home as an office to run his business, and depreciation on the office amounted to $5,000 pre-May 7, 1997 and $10,000 post-May 6, 1997. Upon reviewing the division of marital assets, you notice that the marital home is in Jane’s column with a value of $1,000,000. Bill’s lawyer sees you circle the number and defensively states that the cost of the home was $300,000 with improvements of $200,000 giving a cost basis of $500,000. Subtracting the cost basis of $500,000 from the net selling price of $1,000,000 equals a gain of $500,000. Since they are entitled to a joint exclusion of $500,000, the reportable gain to the IRS is zero. Suddenly you remember an article that you had read and pull out your calculator. What is the actual cost basis of the marital home? Is there a capital gain issue?

Calculating the Actual Cost Basis of the Marital Home 1. Start with the original cost of the marital home of $300,000. 2. Reduce the cost basis by the gain postponed when Bill sold his first home in 1985 ($275,000 - $100,000 = $175,000). 3. Add the improvements for the pool, landscaping, and kitchen to the cost basis ($100,000 + $70,000 = $170,000). The interior and exterior painting in 1997 are excluded. This could be included only if the work was done to prepare the home for sale. 4. Since his first wife died in 1995, half of the home receives a step-up in cost to the fair market value (FMV) at the date of death. The FMV was $250,000 ($500,000 * 1/2). Therefore, the half of the original basis $150,000 is stepped up to $250,000 (an increase in basis of $100,000). Original cost of marital home Sale of first home prior to May 7, 1997 Home improvements Adjustment per 1st wife’s death Cost basis of marital home

$300,000 $175,000 $170,000 $100,000 $395,000 Continued on next page

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15 To calculate the gain, note that Jane is taking ownership of the house and not selling. Therefore, she will only be entitled to the $250,000 exclusion (single or head of household). Assuming a twenty percent tax rate, the marital home should be valued as follows: Net Selling Price Less: Cost basis

$1,000,000 $ 395,000

Less: Home exclusion Gain on sale of home Tax Due (20%)

$ 250,000 $ 355,000 $ 71,000

Depreciation adjustment attributed to periods after May 6, 1997 assuming the maximum rate of twenty-five percent ($10,000 * 25%) is $2,500. Home value per statement of marital assets is $ 926,500 not $1,000,000. Simply put: the cost basis equals the original cost of the home plus capital improvements. However, as noted in the example above, the devil is in the details. When in doubt, consult a tax professional. Dennis M. O’Leary CPA, CFP® is a Principal @ James McCusker & Associates. Dennis can be reached at (978) 256-1323, or by email at

“Logic: The art of thinking and reasoning in strict accordance with the limitations and incapacities of the human misunderstanding.” Ambrose Bierce Family Mediation Quarterly


WHY I PERFORM WEDDINGS By Laurie Israel I have always cried at weddings. When I ponder as to why, I think that it is because I am genuinely concerned for the about-to-be newlyweds, and especially so for the young ones. As 61-year-old-person somewhat experienced in life, I fear for them. Sure, the couple is in love. They innocently face their new life together with hope and promise, but do they really know what is in store for them? As a divorce lawyer and mediator, from my own life experiences and those of my loved ones, I know about the particular stresses and strains present in long-term (and shortterm) marriages. Along with the joy, I have seen the suffering and ordeals that couples go through during the course of everyday life together. That a marriage ebbs and flows, happy and unhappy at times, is probably something the couple saying their vows cannot comprehend.

This is why I cry at weddings. I cry because the couple literally does not know what they are getting into. And no one would dare tell them on this happy day, nor would they even believe if someone did tell them. So why do I perform weddings? Because of my desire to give a married couple all I can give in the form of encouragement and education, so that they will have a better chance at having a happy and satisfying marriage. In 2000, I put in my papers with the Governor’s Council to become a Justice of the Peace in the town in which I reside. Justice of the Peace is an office that has historical ties to a person appointed to keep the “King’s Peace” by use of summary justice (trials, punishment) in remote areas. In our times and in Massachusetts, a Justice of the Peace mainly performs marriages.

In addition, when When people marry, they are generally people marry, they are clueless as to the legal obligations generally clueless as to they would face should they divorce. the legal obligations they would face should they divorce. No Justice of the Peace is an appointed position, one knows that if a spouse becomes much like a judge or a notary public. The dependent on them, they may be responsible Governor’s Council chooses from the for the spouse after the divorce until one of applicants for these positions, and makes them dies. Alimony in other common recommendations, subject to the approval situations is often a shock to a divorcing by Governor. payor spouse. People are surprised when they find out that they have to share their Each town has a fixed allotment of Justices retirement plans and other assets with their of the Peace based on its population. My spouse upon divorce. town has 18, several of which are filled by Continued on next page

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17 City Clerks. There is intense competition for the one or two vacant seats that arise every so often. I zealously pursued the appointment. I secured the signatures of five prominent people in my town. I did everything I could think of, including providing letters of reference. Much to my surprise, on my second application, I was appointed by the Governor’s Council as Justice of the Peace in November, 2005, and I have been performing marriages in Massachusetts ever since. Why would a divorce lawyer/mediator want to perform weddings? It’s certainly not for the money. I receive $75 as a statutory rate if I perform the ceremony in the town in which I reside, and $125 elsewhere in Massachusetts. I usually give a gift of a book on relationships (see below) when I perform a ceremony, thereby cutting down my revenues by $15. Often I bring some

I fight against my natural shyness about performing in front of people, and try not to mumble (which I have a tendency to do). The weddings are usually on Saturdays and Sundays, so I give up part of my muchneeded weekend to perform the wedding ceremonies. And I even have to get dressed up, which I do not like to do. I have honed my wedding ceremony so that it gives honor and support to the current feelings of love and excitement present in the to-be-married couple. But I also include in my ceremony much information as to what important things they must do with and for each other, in order for their marriage to be successful for the long-term. I give the to-be-married couple the choice of whether or not to include “God” language. If “God” language is included, I talk about marriage as a “blessed state”, but how their actions here in this world and with each other are so important to nourish the marriage (a Jewish theological concept that I like).

When we get to the “forsake all others” part in the ceremony, I look at them in the eyes kindly and sagely, but very intently. music to the wedding, and work for hours preparing and revising the wedding ceremony, which I customize for each wedding after speaking with the engaged couple. I find poems which I paraphrase shamelessly (all the dead white men are dead anyway) so that the couple and wedding party finds them accessible. It is really not a profit-making venture.

I talk about how a marriage grows with time, and about the good and the bad times a marriage will have. I tell them that in their lives as they live together there will be many setbacks and disappointments, and that it is confronting these setbacks and disappointments together is what will make their marriage stronger and more longlasting. I try to find out who in their family has had a long-term, happy marriage. Sometimes in

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18 these days it might only be one set of grandparents. I hold out By the time I get to the part about these people as a role model for “in good times and bad times”, I the young couple, because I have them on my wavelength. know that the more divorce there is in their immediate family, the more their marriage license, and present a book on likely a couple is to divorce. I ask them to relationships to them as a wedding gift. The always envision their marriage as long-term book I like to give them is George Pransky’s and permanent – “to the end of your lives, The Relationship Handbook, which whenever that may come,” as I say in the describes a positive, clear and workable approach to addressing marital problems as ceremony. they arise. I recommend it to them for I talk about the capacity to forgive, and how spousal reading, chapter by chapter, in bed that is so important in a marriage. And I talk before going to sleep at times of trouble. about the random and not-so-random acts of kindness to each other that will strongly ease At the end of the ceremony, I give them a a marriage into pleasantness as nothing else benediction, and present a copy of their wedding ceremony. I have it ready and can. printed on beautiful, watermarked buffDuring the ceremony, I spend a lot of time colored stationery and sign it with a fountain talking about the ultimate commitment they pen and ink. They can read it later when are making to each other, and why that they want to revisit the commitments they commitment is so important to their made on the day of their marriage, and the marriage. I have them take the term “forsake love they felt. all others” very seriously. I don’t beat them directly on the head by telling them not to I hope that by all these ministrations, I have have affairs while they are married. But made their wedding ceremony an important when we get to the “forsake all others” part and useful event, and that they will in the ceremony, I look at them in the eyes remember what they learned on their kindly and sagely, but very intently. And wedding day, and that they will be more after all the other guidance that I have capable of carrying out their marriage in a already given them in the ceremony, they way that gives them a good and fruitful life know these are not just words, and that this together. is very important. © 2007 Laurie Israel. All rights reserved. By the time I get to the part about “in good times and bad times,” I have them on my wavelength, and I know they are now taking me very seriously. Towards the end of the ceremony (now that they’ve agreed to all these things), I sign

Laurie Israel is a lawyer/mediator practicing in Brookline, Massachusetts. She helps people resolve their disputes with dignity, integrity and creativity. For more about her work, see and

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THE IMPORTANCE OF INTAKE IN MEDIATION By Israela Brill-Cass & Nicole DiPentima What is Intake? In addition to being a district in South Yorkshire, England (that’s true) “intake” is a word used to describe that first meaningful communication between the mediator and a potential mediation client. The American Heritage Dictionary defines intake as “…the act of taking in; the quantity taken in; something, especially energy, taken in” (emphasis added). It is the last piece of this definition – “energy taken in” – that is at the core of mediation intake. We often describe mediation in terms of energy asking: What is the chemistry in the room? Is the energy right for settlement? Are the dynamics positive and are they enabling resolution? When they’re not working, we take a break, caucus or shift direction with our questions in the hopes of infusing positive energy into the process. Intake is often the very first moment at which we are able to begin to create that positive energy. When someone reaches out to you as a mediator, you begin to share with them information about yourself, your practice and the process. In exchange they share with you information about who they are, what they’re experiencing in their lives at that moment and what they hope, expect or possibly fear will happen in mediation. When this first exchange is positive, you begin to lay the foundation for what will hopefully be a successful and satisfying mediation. Recognizing the importance of intake helps you lay this foundation. Intake gives you an opportunity to

identify potential conflicts of intere s t . During that first interaction with a potential client, you are learning not only about their situation but also about who they are, what they do and whom they’re relying on for support in connection with their dispute, if anyone. Layers of interactions with those not directly involved in the mediation itself present the potential for conflicts of interest. We’ve all encountered the “obvious conflict” – when you or someone you know is involved in the mediation; or when you or someone you know is related to the subject matter of the dispute. Chances are, you’ll recognize a name – of an individual, a company, a professional involved – and it will trigger you to make an appropriate disclosure. It’s the “not-so-obvious conflict” that poses potential problems in mediation. By carefully asking questions at intake and getting beyond the basic information, we become able to identify less obvious but no less important potential conflicts of interest. Potentially the most challenging kind of conflict is the “conflict-that-becomesobvious-during-the-mediation.” By its very definition, it is not a potential conflict that is discoverable by asking questions at the point of intake. The bottom line is that neutrality is perhaps a mediator’s greatest asset. If a client finds out about a potential conflict of interest once the process has started, particularly if they find out about it from someone other than the mediator, the mediator’s neutrality can be

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20 called into question and the mediation irretrievably derailed. The more time you spend asking questions of clients during intake, the more information you get from them and the more likely you are to identify and disclose early on any potential conflicts of interest. Intake gives you an opportunity to get a sense of the clients, their style and demeanor before you start the mediation. As in mediation, listening to the intonation and words chosen by potential clients during intake can provide you with insight into what to expect from them when they are in a room with you and with each other. Is the client using “loaded” words like “scared” or “nervous” that may refer to safety or abuse issues; or “able” or “capable” that could signal issues of mental capacity or readiness to engage in mediation or simply indicate a need for physical accommodations during the mediation? To avoid surprise during or after the mediation – ask the questions at intake and be prepared (to the extent that you can be) – before walking into the room. Getting a sense of the clients’ demeanor can also alert you to whether the clients might be people that you cannot or might not want to work with. Are these the type of clients that push your personal buttons? Are they giving you an indication that they don’t feel there is a lot of value in the process or are they underestimating the value of your time? You want to know this sooner rather than later and intake is the perfect opportunity to find out before you’re in too far.

the clients’ willingness, ability or competence to engage in the mediation process. If possible, isn’t it better to find out that a potential mediation client suffers from rapid-cycling bi-polar disorder before you’re in the room with them? Equally important: finding out that someone thinks the other party has rapid-cycling bi-polar disorder before you’re in the room with them. If someone doesn’t have the capacity to participate in mediation, the best chance you may have to figure that out (and figuring it out does not mean diagnosing them) is to spend time talking with them. Trust your instincts and don’t go down the road with someone you think might not be capable of decision-making. True story. Every year or so Boston Law Collaborative gets a call from a woman who describes an awful situation she believes herself to be in. She explains that she was forcibly divorced from her husband, not only without her consent but also without her knowledge or presence, by a judge who was in collusion with her husband, the Bar Association, the Board of Bar Overseers and the Attorney General of the Commonwealth of Massachusetts. When you ask why this might have happened to her – because, according to her, she had no assets taken from her and her husband does pay alimony – she cycles into a discussion of a conspiracy to ruin her life and shame her as being a “divorced woman.” The remedy she seeks is to be re-married to her former husband and to expose the conspiracy to the public to save others from suffering the same fate she believes she suffered. It’s incredibly sad and I’m struck by how

Intake gives you an opportunity to assess

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Continued on next page

21 exhausting it must be to be this woman and to feel that you’re at the center of a conspiracy and that no one is listening. But if I’m not qualified to help this woman, this is a far better discussion for me to have with her by phone than in person. Only by spending time talking with someone like this can you realize that a person who initially comes across as well-spoken and lucid (as this woman does at first) may be in need of very different help than the average mediator can offer. Intake allows you to begin to understand the clients’ expectations and set appropriate expectations for the process. As much as many of us hate to admit it, mediation does have its limitations: among them that it will not punish someone who has, in the eyes of one of the parties, done “wrong,” it will not completely undo a harm that has been done, and it will not necessarily vindicate someone who feels that they are completely in the right. (Quite to the contrary: the old saying goes that a good settlement is one in which the parties are equally unhappy and perhaps we should reframe that to say instead that after a successful mediation both parties are equally happy.) It’s important in any case to set appropriate expectations with the clients, determine what they want, tell them what they can and shouldn’t expect and ultimately help them decide if mediation or another process is suitable for them. This will minimize unrealistic expectations and hopefully avoid disappointment – with both you and the process itself. Intake gives you an opportunity to tell the

clients what you can do for them, and to educate them. I know a lot of mediators don’t like to use this terminology (but I’ll say it anyway) intake gives you an opportunity to “sell your practice.” It never ceases to amaze me how few people – clients and attorneys alike – know what a mediator does and fewer still know how the mediator’s role differs from that of an arbitrator. Intake is the perfect time to educate the potential client about DR processes, the differences between them and when they might be appropriate. Since during this first interaction it’s impossible to give potential clients all of the knowledge they need, it is also a good time to direct them to informational web sites or other resources that can help them get educated about mediation. Intake is also the time for you to explain to a client your background and experience. In doing so, it is important to be completely honest about your level of expertise because the parties often look for someone with subject matter expertise in the area of their conflict. As Benjamin Franklin said: “It takes many good deeds to build a good reputation, and only one bad one to lose it.” Take the time during intake to educate clients about what you can and can’t do for them. Never underestimate the power of word of mouth in the community and don’t miss an opportunity to introduce yourself in a positive way – intake gives you just such an opportunity. Intake gives you an opportunity to begin to understand the issues and the dynamics that will impact the mediation

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22 process. This is the energy we talked about - you are sharing yours with the potential clients, and they are taking a step towards sharing theirs with you. David Hoffman often reminds us that when a potential client reaches out to us, they have taken a momentous step: they have shifted from being resigned to the situation they are in to considering that there may be an alternative; they are signaling that they may be ready to make a change in their lives and acknowledging that they need help to make that change; and they are letting us – asking us – to come into their lives to help them make that change. At the first moment you connect with someone who is in this position, you begin to create the energy needed to help them make that change. Don’t let that moment go unnoticed because amazing things can happen. Never underestimate what can happen during the course of an intake. Indeed, the mediation often begins at that first point of contact; and what energy you are able to exchange with the clients can and will be carried over into the mediation itself. Make a personal connection. Intake allows the client the first opportunity to make a positive connection with our office. Making a personal connection with the client during that initial call is part of what makes an intake successful, and there’s more art than science to connecting with the potential client. However, there are several skills to employ that will likely produce a positive connection: Give the potential client your full attention and the best quality listening you can. This may mean going to a quiet

place in your office or looking away from your email while you are on the phone. If you give a potential client your full attention they are likely to notice and respond. Listen actively. Be sure to give the client verbal feedback so they know that you are there and understand what they have said. Restating and summarizing can help; so can good follow-up questions. Good active listening will also encourage the client to talk more. Find something that connects the two of y o u. Whether it is the town you are from or the breed of dog that you own, find ways to talk with the client about something that is important to both of you. This will put the client at ease and remind them that you are more than a voice on the phone – you are a human being. I often find that these small commonalities are what bonds me to clients long after they have decided to work with us. I am consistently amazed at how many clients will remember little details we discussed in our first conversation. EDUCATE THE CLIENT When clients reach out for the first time, they are looking to you for information about their options. Often, they are uncertain about the landscape, and they are experiencing great emotional upheaval in their lives. When educating clients, it is important to remember: S t a rt simply and ask questions to figure out what clients need to know. Not every client is starting from zero, nor are all clients equally knowledgeable. In the course of conducting mediation intakes we have found that some lawyers knew less than expected

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23 and some non-lawyers knew more than expected. Ask questions to assess where the client is starting from. Don’t assume knowledge without reason. Just as you don’t want to assume that clients don’t have any knowledge of mediation, you also don’t want to skip over information that could be vital to their decision-making process. Be thorough and err on the side of giving them more information than they need. What may seem pedestrian to you after doing a great number of intakes may be a very important piece of information for the client. Talk with them about pro c e s s. Find concise simple ways to explain the differences in processes. (Here are three mnemonics to consider using as a communication tool: mediation is “facilitated negotiation;” arbitration is “private adjudication;” and collaborative law is “representation without litigation.”) Talking about the differences among DR processes may seem simple, but these can be d i fficult concepts for some people to understand if they are unfamiliar with the field. Give clients a concrete idea of what the parties experience as they go through the mediation process. Small details, such as how long mediation sessions will last can be important to clients. The more you can tell a client about the process the more comfortable they will feel walking through your doors for the first time. Refer clients to outside re s o u rc e s. Referring clients to outside resources will help them to make their decision. You don’t want the client to feel as though you are pressuring them to “buy” your services.

Encouraging them to do more research and speak with other professionals sends a clear message that you are confident in the services that your offer and you believe that finding a good fit for clients and professionals is important. Walking clients through your own website, or other useful websites (such as,, or, can also be a powerful educational tool. Don’t be shy about telling clients what makes your firm stand out. These are often the reasons they decided to call, and it can be reassuring for them to hear it from you. SCREEN FOR DOMESTIC VIOLENCE Domestic Violence (DV) is an extremely sensitive issue. There is a wide spectrum of views in the field about the appropriateness of mediation and other processes for divorce and other family disputes when DV is present. In order to help protect your clients and staff, the following guidelines should be observed: You and your staff should be trained in how to spot DV. It is better for everyone involved if DV can be detected early on. You do not want to find out about DV when you are halfway through divorce mediation. Be certain that everyone knows what their reporting duties are. It is not enough for you and your staff to be trained in how to spot DV – they need to know what to do next. Make sure you have a reporting plan that everyone in your office understands, and that directs all DV concerns to one person. Remember that the screening pro c e s s begins at intake but does not end there. Screening for DV is a continuous process. One way to build on the screening done in

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24 the initial phone intake is to schedule an inperson intake or an in-depth interview, such as a marital history. More information about domestic violence can be found at the National Coalition against Domestic Violence at: COVER YOUR BASES It is important to make certain that your intake is comprehensive. There is nothing worse than hanging up the phone and finding that you forgot to ask for an email address or an alternate phone number where the client can be reached, or the name of the person’s employer (for conflict checking purposes). In order to avoid an embarrassing phone call to a potential client, use the following guidelines: Take your time. Be sure that you allow enough time to do the intake. If you don’t have the time to devote to the task when a client calls, schedule a time to call them back when you can give them your full attention. Develop an intake form that works for you and your style. An intake form provides a framework to organize the information you gather. Developing your own form will aid the communication. When working in an office where many people conduct intakes you will need to develop a standard form that works for everyone. The form should be easy to use while having a conversation. Gathering the information shouldn’t get in the way of the natural flow of a conversational interview. The form should ensure that you have all the information you need to run a conflict check. It should be an easy guide for a newcomer conducting an intake, and should standardize

intake information so everyone in the office can access and understand the case. Practice self-care. Remember that you are dealing with people in emotional crisis. Even the folks who are the best at going to deep emotional places with people need to be mindful of the toll it takes on them. Remember that the intake phase of a case is important, and can be exhausting. If you don’t have the time to devote to intake, or you are feeling emotionally taxed at the moment the call comes in, either reschedule a time for the intake or put the client on hold and take a few deep breaths. Final thoughts. We all know that first impressions count for a lot. The book Blink, by Malcolm Gladwell, confirms what our instinct tells us – we all make snap judgments, and often those judgments are accurate. It may be a cliché that we have only one chance to make a first impression on people, but it is true nonetheless. Intake is the moment when that first impression is formed. Israela Brill-Cass, Esq. is the Executive Director and ADR Case Manager at Boston Law Collaborative, LLC. She mediates commercial cases and serves as a Parenting Coordinator in family law matters. Israela can be contacted at, or by phone at 617-439-4700 X 203. Nicole DiPentima is a Paralegal at Boston Law Collaborative, LLC, and a graduate student at UMass Boston in their Dispute Resolution program. Nicole can be contacted at or by phone at 617-439-4700 X 200.

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Family Mediation Quarterly


WHAT’S NEWS? Chronologically Compiled by Les Wallerstein How to Keep Peace Among Heirs Distributing a families tangible belongings — often with far more sentimental value than monetary worth — has long had the potential to ignite family feuds. Divorce and second marriages can add to the tension. Families and estate planners are increasingly turning to a number of novel strategies, including online auctions to divide valued objects. WebEX, an online communication tool enabled one family to hold a virtual auction among the siblings — who all lived in different states. Each heir received 10,000 “virtual points” to spend in the bidding. After all the objects were digitally posted, the heirs logged on to their computers. The auction took about 2 hours. One issue remained unresolved, as two brothers bid their entire point cache for their father’s army shirt. They ended up removing it from the auction and putting it in the hands of the executor. (Rachel Emma Silverman, Wall Street Journal, 4/18/2007) How Much is a Pet’s Life Worth? Most people consider their pets priceless. But in civil law pets are usually seen as property — akin to a toaster or a TV set — worth only their market value. Some lawyers, animal rights activists and pet owners are arguing that most state laws fail to consider that pets play the role of companions in today’s society — asserting that pet owners should be entitled to compensation for emotional distress when their animal is killed or injured. Cruelty to animals is now a felony in 42 states. (Sara Schaefer Muñoz, Wall Street Journal, 4/26/2007) Same-Sex Marriage Legislation Filed by New York Governor Eliot Spitzer proposed legislation that would make NY the second state in the country to legally sanction same-sex marriage. While Spitzer acknowledged that he does not expect the bill to pass the State Legislature anytime soon, he is now the country’s only governor to propose legislation to formally legalize same-sex marriage. (Nicholas Confessore, New York Times, 4/28/2007) Illegal Immigrant Establishes the Right to Marry in US Heather, a US citizen and her fiancée José, a Mexican without a valid US visa, were denied a marriage license by a Pennsylvania county official — because the groom-to-be was an illegal immigrant. A federal judge ruled in favor of the couple, saying that the official violated their “fundamental right to marry.” The American Civil Liberties Union lawyer representing the couple said this was the first ruling by a federal judge affirming the right of an immigrant without a visa to marry. (Julia Preston, New York Times, 5/2/2007) Continued on next page Summer 2007 • Vol. 6 No. 3

27 Avoiding Divorce Traps The list of potential blunders facing splitting spouses is head-spinning: Dividing a stock portfolio the wrong way can trigger vastly unequal capital-gains-tax hits. Overlooking the mysterious QDRO can make a mess of dividing a 401(k). The first step suggested to safeguard finances is to consider other ways to divorce. “Opt for alternative ways to reach an agreement, such as mediation or collaborative divorce.” (Rachel Emma Silverman, Wall Street Journal, 5/5/2007) Teen Crime & Punishment According to Human Rights Watch, in the United States there are more than 2,200 people serving life in prison without parole for crimes they committed as teens. Colorado has 45; 60 are in Massachusetts. In the rest of the world there are 12. (Joanna Weiss, Boston Globe, 5/8/ 2007) Oregon: Domestic Partnerships Governor Theodore Kulongoski signed into law legislation creating “domestic partnerships” for same-sex couples starting January 1st, and a bill that outlaws discrimination based on sexual orientation. The domestic partnership law enables same-sex couples to enter into contractual relationships with many of the benefits of marriage. (AP, New York Times, 5/10/2007? Same-Sex Nuptials Validated for NY Couples Invoking a little-noticed legal loophole, Massachusetts Suffolk Superior Court Judge Thomas E. Connolly has legally validated the marriages of at least 150 same-sex couples from New York who wed in Massachusetts between May 17, 2004, when gay marriage became legal here, and July 6, 2006, when gay marriage was declared illegal there. In the decision, Connolly pointed out that New York couples could not marry here because of a recent New York Court of Appeals ruling prohibiting same-sex marriage. But the couples’ lawyers noticed that the ruling came down on July 6, 2006. They went back to Connolly to make the case that before that date New York had no explicit ban on the practice and that the couples who came here in that time frame had legitimate marriages. Authorities in New York indicated they would not challenge the status of those couples. (Raja Mishra, Boston Globe, 5/17/2007? New Hampshire Adopts Civil Unions The governor of New Hampshire signed a bill that will allow same-sex civil unions to begin in January, 2008. New Hampshire will become the fourth state to do so, joining Vermont, Connecticut and New Jersey, and the first state to do so without a court order or a pending law suit. (Pam Belluck, New York Times, 6/2/2007) Massachusetts Gay Marriage Referendum is Rejected Same sex marriage will continue to be legal in Massachusetts, after proponents in both houses won a pitched battle to defeat a proposed constitutional amendment to define marriage as between a man and a woman. “In Massachusetts today, the freedom to marry is secure,” Gov. Deval Patrick said after the legislature voted 151 to 45 against the

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28 amendment, which needed 50 favorable votes. (Pam Belluck, New York Times, 6/15/2007) Church Reverses Annulment The Vatican reversed the annulment of former Rep. Joseph P. Kennedy II’s first marriage, a union that had lasted 12 years and produced two sons. Sheila Rauch had sharply criticized the Catholic Church for annulling her marriage, alleging in a 1997 book that the Kennedy family's influence in the church had made it possible. She said she found out about the annulment only after Kennedy married his former congressional aide, Beth Kelly, in a civil ceremony two years later. (Denise Lavoie, Boston Associated Press, 6/20/2007) First National Program Launched to Combat Divorce Rates in Autism Community Nixa, MO, June 12 (PRNewswire/USNewswire) Today the National Autism Association (NAA) announced the launching of its Family First Program, a comprehensive national marital counseling program to combat divorce rates within the autism community. The new initiative offers couples with autistic children immediate access to marital counseling, and a grant program for those unable to afford it.

“Restlessness is discontent and discontent is the first necessity of progress. Show me a thoroughly satisfied man and I will show you a failure.” Thomas A. Edison Summer 2007 • Vol. 6 No. 3


MCFM NEWS ANNUAL ELECTION RESULTS Congratulations to the three newly elected members of the Board of Directors of MCFM as a result of the election at the Annual Meeting on June 13th. Providing a broad representation of mediators throughout the state, the new Board members are Rebecca J. Gagne of Brockton, Mary A. Samberg of Springfield, and Diane W. Spears of Boston. These three new Board members will serve two-year terms from June, 2007 until June, 2009. Also elected to two-year terms as Directors until June, 2009 are present and continuing Board members Lynne K. Cooper, Harry E. Manasewich and Steven Nisenbaum. Present officers serving until June, 2008 are President, Lynda J. Robbins; VicePresidents, Kathleen A. Townsend and Marion Lee Wasserman; Clerk, Jonathan E. Fields; and Treasurer, Mark I. Zarrow. Board of Directors fulfilling their two-year terms until June, 2008 are S. Tracy Fischer, Mary T. Johnston, Patricia A. Shea, Mary A. Socha, Debra L. Smith, Les Wallerstein and past president Laurie S. Udell. In accord with the MCFM By-Laws, the officers, Lynda J. Robbins, Kathleen A. Townsend, Marion Lee Wasserman, Jonathan E. Fields and Mark I. Zarrow, as well as former president Laurie S. Udell will comprise the Executive Committee for the coming year. Board Members Emeritus are John A. Fiske, Janet B. Weinberg, Jerome H. Weinstein and Barbara N. White.

MCFM is pleased to announce that Ramona Goutiere has been retained to provide administrative and member support. Ramona steps in for Dee Fraylick, MCFMâ&#x20AC;&#x2122;s longtime administrator and friend, who resigned earlier this summer. Ramona owns a virtual assistance firm in Ashland, New Hampshire, that specializes in nonprofit management, writing, and administrative support services. She brings more than 30 years of hands-on experience to the position. Feel free to contact Ramona with your questions and ideas â&#x20AC;&#x201D; or just to say hello! RAMONA GOUTIERE P.O. Box 114 Ashland, NH 03217-0114 603-254-4593 Family Mediation Quarterly


USING CO-MEDIATION TECHNIQUES Date: Tuesday, September 11, 2007 Time: 2 - 4 PM Place: Concord District Courthouse Presenters: Norman Sherman, Esq. & Mary Ann Smoot, LSW Norman Sherman is an Attorney in Swampscott who specializes in family mediation and elder law. Mary Ann Smoot is a Social Worker and a Paralegal who has been a member of the North Shore Community Mediation Program in Beverly, MA for over a decade. Both are MCFM Certified Mediators.


MEDIATION PEER GROUP MEETINGS Merrimack Valley Mediators Group: We are a group of family law mediators who have been meeting (almost) monthly since before the turn of the century! The criterion for membership is a desire to learn and share. Meetings are held at 8:15 AM on the last Tuesday of the month from January to June, and from September to November, at the office of Lynda Robbins, 11 Summer Street, Chelmsford. Please call Lynda at (978) 256-8178 or Karen Levitt at (978) 4585550 for information and directions. All MCFM members are welcome. Metro-West Mediators Group: The Metro-West group (usually) meets on the first Friday of the month at the home of S. Tracy Fischer, located at 120 Cynthia Road, in Newton. Monthly meetings begin at 9:15 AM and are open to all MCFM members. Please call (617) 964-4742 or email <> for confirmed dates and directions. Summer 2007 • Vol. 6 No. 3


HELP BUILD AN ARCHIVE! In the spring of 2006, MCFM entered into an agreement with the Department of Dispute Resolution at the University of Massachusetts to create an archive of Massachusetts family-related mediation materials. The two key goals are to preserve our history and make it available for research purposes. We're looking for anything and everything related to family mediation in Massachusetts — both originals and copies — including: meeting agendas and minutes, budgets, treasurer's reports, committee reports, correspondence, publications, fliers, posters, photographs, advertisements and announcements. We need your help to maximize this opportunity to preserve the history of mediation in Massachusetts. Please rummage through your office files, attics, basements and garages. If you discover materials that you are willing to donate please contact Les Wallerstein at

MCFM BROCHURES AVAILABLE! Copies of MCFM’s beautifully redesigned brochure are still available for members. Brochure costs are as follows: Two for $1, 25 for $10, 60 for $20, 100 for $30, and 150 for $40. A blank area on the back is provided for members to personalize their brochures, or to address for mailing. Members may obtain copies from Ramona Goutiere Call 603-254-4593 or

“Once made equal to man, woman becomes his superior.” Socrates Family Mediation Quarterly


EMAIL: From: Subject: A very blue moon Date: May 11, 2007 To: Dear Les, I read your article above and loved it. I had the blue moon thing happen to me — twice. It was because of this experience that I learned what that waiting period was all about... the state wanting to encourage reconciliation by giving parties a cool off period so that they can have the option of pulling the plug before the divorce judgment becomes absolute! Attorney Michael L. Lavender Barnstable, MA

From: Subject: Time and the Marriage Flowing Date: May 16, 2007 To: Cc: Dear Les, cc Dr. Einstein: I respond first to the Blue Moon. My third divorce, back in 1979, raised the same unpredicted question. The couple had been calmer than yours, and only showed anger when she blasted him gently for coming into her kitchen unannounced about a week after they had separated, thereby creating the “To preserve the privacy of each, neither shall visit the home or place of work of the other without prior (notice) (approval).” sentence in all my Separation Agreements. About a month after the divorce had been approved they called and asked how they could undo it. I read the statute and told them to write a letter to the court and have both of them sign it. They did. So I thought, “This is amazing. One third of all the couples I see end up staying married.” Alas, it was at least 10 years before that happened again. Continued on next page

Summer 2007 • Vol. 6 No. 3

33 I respond next to your delightful discovery of Dr. Einstein’s paper. The photograph is worth many words, too. I thought he would appreciate your publishing anything written in JEST, particularly by him, so I am sending him this email and hope his machine is not down. There are many books about divorce now which make the same point he elucidated in 1938, including Difficult Conversations for example. He gets so much mail I don’t expect a response. Hugs, John

From: System Administrator <> To: Subject: Undeliverable: Time and the Marriage Flowing Date: Wed, 16 May 2007 Your message did not reach the following recipient(s): ALBERTEINSTEIN@RELATIVITY.COM The recipient name is not recognized… Unknown Recipient

From: Subject: Fwd: Undeliverable: Time and the Marriage Flowing Date: May 16, 2007 To: Dear Les: Idiots. How can they say with a straight face that “the recipient name is not recognized” or, worse, “unknown recipient”? We know better, John

Family Mediation Quarterly

34 From: David Hoffman Sent: Saturday, May 19, 2007 To: Les Wallerstein Subject: RE: MCFM To the editor: Thank you for publishing the hilarious comments on the relativity of time attributed to Albert Einstein. As you noted, the “scientific paper” that you reproduced was published in 2002 in Scientific American. It appears to be classic Einstein, poking fun at science and himself. The premise for the paper is a genuine quote from Einstein (“When a man sits with a pretty girl for an hour, it seems like a minute. But let him sit on a hot stove for a minute and it’s longer than any hour. That’s relativity.” See Carl Seelig’s biography, Albert Einstein (1956).) Several years ago, when I first saw this “scientific paper” in an email from a friend, I immediately forwarded it to my son, who was studying engineering in college. He wrote back and pointed out two things: (a) the acronym for the journal it was supposedly found in (the Journal of Exothermic Science and Technology) is “JEST” (BTW, research indicates that such a journal has never existed); and (b) Howard Mirsky, the person who allegedly discovered this “scientific paper” in a local library, writes a humor column for Scientific American called “Antigravity,” which is where Mirsky published this piece. Having been taken in by this clever piece of writing when I first saw it, I was able, in a minute, to identify with the impulse that led you to publish it as authentic Einstein. David Hoffman

“I am content in my later years. I have kept my good humor and take neither myself nor the next person seriously.” Albert Einstein Summer 2007 • Vol. 6 No. 3



In 2005, MCFM established the annual, John Adams Fiske Award for Excellence in Mediation. Anyone who has shown excellence in and/or contributed to family mediation is eligible to win. This year's award will be presented at MCFM’s 6th annual Family Mediation Institute on October 19, 2007. Please submit nominations with a short letter of explanation to: Lynda Robbins at

FRAMINGHAM COURT MEDIATION SERVICES BASIC TRAINING: MEDIATION AND CONFLICT RESOLUTION A 36 hour basic training in mediation and conflict resolution will be conducted by the Framingham Court Mediation Services (FCMS), a court-approved program. Participants will be introduced to the basic skills in mediation and conflict resolution through lectures, interactive exercises, and role-plays. An apprenticeship may be available upon successful completion of this training. TRAINING DATES AND TIMES Saturdays, 9/8/07 and 9/29/07, 8:30 am – 4:00 pm Mondays, 9/10/07, 9/17/07, 9/24/07, 6:00 pm – 9:30 pm Wednesdays, 9/12/07, 9/19/07, 9/26/07, 6:00 pm – 9:30 pm LOCATION Dispute Resolution Center 600 Concord Street Framingham, MA 01702 Cost $650 For more information and inquiries please contact us at 508-872-9495 or by email at or visit our web site at Family Mediation Quarterly

36 BASIC MEDIATION TRAINING September 15, 20, 27 and October 4, 11, 20, 2007 In Greenfield, MA Presented by The Mediation & Training Collaborative (TMTC) This 34-hour interactive, practice-based training is open to anyone who wishes to increase skills in helping others deal with conflict, whether through formal mediation or informal third-party intervention processes in other professional settings. TMTC is a court-approved mediation program, and this training meets SJC Rule 8 and Guidelines training requirements for those who wish to become court-qualified mediators. For more details or brochure, contact Susan Hackney at or 413-774-7469 x16.

DIVORCE MEDIATION TRAINING ASSOCIATES PRESENTS 40 Hour Comprehensive Basic Divorce Mediation Training October 17, 18, 10 & November 2 and 3, 2007 Wellesley College Club Trainers: John A. Fiske, Diane Neumann & Philip D. Woodbury Cost: $1,500 includes written materials, an instructional DVD & two meals For more information visit

The Family Mediation Quarterly is always open to submissions, especially from new authors. Every mediator has stories to tell and skills to share. To submit articles or discuss proposed articles call Les Wallerstein (781) 862-1099 or email NOWâ&#x20AC;&#x2122;S THE TIME TO SHARE YOUR STORY! Continued on next page Summer 2007 â&#x20AC;˘ Vol. 6 No. 3

37 COMMONWEALTH HEALTH CONNECTOR PUBLIC NOTICE/NEW LAW Beginning July 1, 2007, a new Massachusetts law says that residents age 18 and over must have health insurance. With few exceptions, adults must be able to show that they have health insurance by Dec. 31, 2007. Those who cannot will lose the tax benefit of their personal exemption on their 2007 Massachusetts income tax return, worth $219 for an individual. Penalties will increase for 2008. Most adults already have health insurance, perhaps through an employer or a government program. If you do not, the Commonwealth Health Connector can help you or your employer to find the right health plan. The Health Connector has new health insurance choices for you and your family. These plans carry the state’s Seal of Approval for quality and aff o r d a b i l i t y. You can also purchase plans through approved Massachusetts health insurance carriers. To learn more or to purchase a plan, visit

THE MASSACHUSETTS UNIFORM MEDIATION ACT “MASSUMA” WORKING GROUP MASSUMA welcomes input from everyone in the mediation community! Go online for updates, reports, committee links and contact information.

COMMUNITY DISPUTE SETTLEMENT CENTER Building Bridges • People to People • Face to Face

60 Gore Street, Cambridge, MA 02141 Established in 1979, the CDSC is a private, not-for-profit mediation service dedicated to providing an alternative and affordable forum for resolving conflict. CDSC also provides training programs in mediation and conflict management to individuals and organizations. For more information please contact us at (617) 876-5376, or by email:, or at our web site: Family Mediation Quarterly


JOIN US MEMBERSHIP: MCFM membership is open to all practitioners and friends of family mediation. MCFM invites guest speakers to present topics of interest at four, free, professional development meetings annually. These educational meetings often satisfy certification requirements. Members are encouraged to bring guests. MCFM members also receive the Family Mediation Quarterly and are welcome to serve on any MCFM Committee. All members are listed online at MCFM’s web site, and all listings are “linked” to a member’s email. Annual membership dues are $90, or $50 for full-time students. Please direct all membership inquiries to Ramona Goutiere at <>. REFFERAL DIRECTORY: Every MCFM member is eligible to be listed in MCFM’s Referral Directory. Each listing in the Referral Directory allows a member to share detailed information explaining her/his mediation practice and philosophy with prospective clients. The Referral Directory is printed and mailed to all Massachusetts judges, and to each listed member. The most current directory is always available online at The annual Referral Directory fee is $60. Please direct all referral directory inquiries to Jerry Weinstein at <>. PRACTICE STANDARDS: MCFM was the first organization to issue Practice Standards for mediators in Massachusetts. To be listed in the MCFM Referral Directory each member must agree to uphold the MCFM Standards of Practice. MCFM’s Practice Standards are available online at CERTIFICATION & RECERTIFICATION: MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for mediators with significant mediation experience, advanced training and education. Extensive mediation experience may be substituted for an advanced academic degree. MCFM’s certification & recertification requirements are available online at Every MCFM certified mediator is designated as such in both the online and the printed Referral Directory. Certified mediators must have malpractice insurance, and certification must be renewed every two years. Only certified mediators are eligible to receive referrals from the Massachusetts Probate & Family Court through MCFM. Certification applications cost $150 and re-certification applications cost $75. For more information contact Lynn Cooper at <>. For certification or re-certification applications contact Ramona Goutiere at <>. Summer 2007 • Vol. 6 No. 3


DIRECTORATE MASSACHUSETTS COUNCIL ON FAMILY MEDIATION, INC. 23 Parker Road, Needham Heights, MA 02494-2001 Local Telephone & Fax: (781) 449-4430 email: web site: TOLL FREE: 1-877-777-4430 OFFICERS President

Lynda J. Robbins, 11 Summer Street, Chelmsford, MA 01824 (978) 256-8178,


Kathleen A. Townsend, Divorce Mediation Group, Inc., 1441 Main Street, Springfield, MA 01103, (413) 733-4444,


Marion Lee Wasserman, 199 Wells Avenue, Suite 201, Newton, MA 02459, (781) 449-4815,


Jonathan E. Fields, Fields & Dennis, LLP, 20 William Street, Suite 165, Wellesley, MA 02481, (781) 489-6776,


Mark I. Zarrow, Lian, Zarrow, Eynon & Shea, 34 Mechanic Street, Worcester, MA 01608, (508) 799-4461,


Lynn K. Cooper, S. Tracy Fisher, Rebecca J. Gagne, Mary T. Johnston, Harry E. Manasewich, Steven Nisenbaum, Mary A. Samberg, Patricia A. Shea, Debra L. Smith, Mary A. Socha, Diane W. Spears, Laurie S. Udell & Les Wallerstein


John A. Fiske, Janet B. Weinberger, Jerome Weinstein & Barbara N. White

ADMINISTRATOR Ramona Goutiere, Goutiere Professional Business Services, P.O. Box 114, Ashland, NH 03217-0114, 603-254-4593,

Family Mediation Quarterly


MCFM MCFM Summer 2007 Vol. 6 No. 3 The Massachusetts Council On Family Mediation is a nonprofit corporation established in 1982 by family me...